Seymour and Migration Agents Registration Authority - [2006] AATA 62

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 62
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/216

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL SEYMOUR

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member M D Allen
Date27 January 2006
PlaceSydney

Decision
The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that Michael Seymour is not a fit and proper person to be reregistered as a migration agent.

(Sgd) M.D. ALLEN
.............................
Senior Member

CATCHWORDS
MIGRATION AGENT – application to reregister – whether applicant not a person of integrity or otherwise not a fit and proper person to give immigration assistance – validity of decision under review – failure to disclose prior charges and convictions as required by the Migration Act 1958 in particular a conviction of contempt of court – discussion of the nature of contempt – decision under review set aside and Tribunal substitutes its own decision that the Applicant is not a fit and proper person to be reregistered as a migration agent.
Migration Act 1958 ss 290, 312
Davies v The Australian Securities Commission (1995) 131 ALR 295
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Australian Securities and Investments Commission v Donald (2003) 136 FCR 7
Law Society of NSW v Seymour [1999] NSWCA 117
Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314
Witham v Holloway (1995) 183 CLR 525
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Limited (1986) 161 CLR 98
Microsoft Corporation & Microsoft Pty Ltd v Marks (1996) 69 FCR 117
Malindi v R [1967] AC 439
Stirland v Director of Public Prosecutions [1944] AC 315
Halsbury’s Laws of Australia Volume 5 – Contempt
REASONS FOR DECISION

Senior Member Allen

1. By application made 17 February 2005, Michael Seymour (“the Applicant”) sought review of a decision made on 14 February 2005 refusing to reregister him as a migration agent on the ground that he was not a person of integrity or otherwise not a fit and proper person to give immigration assistance.
2. That decision was made pursuant to s 290 of the Migration Act 1958 (as amended) (“the Act”). Section 290 reads inter alia:
(1)An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)…

(2)In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a)the extent of the applicant’s knowledge of migration procedure; and
(b)[repealed]
(c)any conviction…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] AATA 62
Decision Date: 27 January 2006

CaseChat Overview and Summary

In the matter of Michael Seymour, the Applicant, and the Migration Agents Registration Authority, the Respondent, the Federal Court was tasked with reviewing a decision by the Migration Agents Registration Authority regarding the Applicant's application for reregistration as a migration agent. The Authority had denied the Applicant's application, citing that he was not a person of integrity or a fit and proper person to give immigration assistance, a decision grounded in the Applicant's failure to disclose prior charges and convictions, particularly a conviction for contempt of court. The Applicant sought to challenge this decision, asserting that it was invalid.

The court was required to determine the validity of the Authority's decision and whether it was lawful, whether the Applicant was indeed a fit and proper person to be reregistered as a migration agent, and the significance of the failure to disclose prior charges and convictions as mandated by the Migration Act 1958. Specifically, the court needed to consider the nature of the Applicant's conviction for contempt of court and its implications on his character and suitability to provide immigration assistance.

The court found that the decision under review was flawed due to the Applicant's failure to disclose his prior charges and convictions as required by the Migration Act 1958. The court set aside the decision and substituted its own, concluding that the Applicant was not a fit and proper person to be reregistered as a migration agent. The court noted that contempt of court is a serious matter that reflects poorly on a person's integrity and suitability to provide immigration assistance. The court also highlighted that the failure to disclose such a conviction is a significant breach of the requirements set out in the Act.

The court's final orders were that the decision under review was set aside, and the Tribunal's decision was substituted with a new decision that Michael Seymour is not a fit and proper person to be reregistered as a migration agent.

Orders

Orders of the court

The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that Michael Seymour is not a fit and proper person to be reregistered as a migration agent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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